King leads counsel on 50-year-old case
La PUSH, Washington — Since her second year as an attorney in 2010, Muscogee (Creek) citizen and attorney Lauren King has been representing the Quileute Tribe in United States v. Washington, a case that is almost 50 years old.
“I feel extremely close to Quileute,” she said. “I grew up as an attorney with them.”
King is a partner for Foster Pepper PLLC in Seattle, Washington.
In 2012, King became lead counsel for the Quileute in a high-stakes treaty fishing rights dispute. The Makah Indian Tribe had sued the Quileute Tribe and the Quinault Indian Nation in United States v. Washington, seeking to dramatically cut back where in the Pacific Ocean the Quileute and Quinault could fish.
At stake were the western boundaries for the Quileute and Quinault in the Pacific Ocean, as well as the northern boundary of the Quileute’s treaty fishing grounds.
Treaty fishing boundaries are determined based upon where a tribe customarily caught aquatic species at and before treaty times, which were the 1850s for the Quileute. Evidence drawn from linguistics, archaeology, marine biology and anthropology was presented at trial to prove where the Quileute caught aquatic animals in the 1850s.
King said the trial began in spring 2015 and lasted for 23 days.
“In July 2015, Judge Ricardo Martinez, who oversaw the case in the federal trial court, issued an order that Quileute harvested aquatic animals out to 40 miles offshore at treaty times, and that Quinault went out to 30 miles,” King said. “Therefore, the court set the tribes’ treaty fishing areas 40 and 30 miles offshore, respectively.”
But the Quileute and Quinault’s win did not mean they were out of the woods. The Makah Indian Tribe appealed the decision.
The Makah appeal argued that the Quileute and Quinault pursued whales and seals much further out to sea than fish at treaty times, and Martinez wrongly determined all the waters were included in the treaty fishing right.
King said there was a treaty interpretation question where harvesting sea mammals could count in treaty fishing rights determinations. The question was how the tribes understood their treaties.
“Because the treaty included ‘the right of taking fish,’” she said. “The issue was what that provision meant in 1855, how the tribes would have understood it as it was translated from English to the tribes’ languages during the treaty negotiations.”
The Makah Indian Tribe urged a modern-day interpretation of fish to only mean fin fish.
King said that interpretation was inappropriate to do under Supreme Court precedent.
“The treaty interpretation was front and center on the appeal,” she said.
In October 2017, a three-judge appellate panel ruled that evidence of whaling and sealing were appropriately used by the lower court to determine the tribes’ treaty fishing areas.
The panel also affirmed the 40 and 30 mile boundaries, but reversed an order imposing longitudinal lines where the tribes could fish because the lines drawn, “far exceed the court’s underlying factual findings,” according to the opinion written by U.S. Circuit Judge M. Margaret McKeown.
“It was a very quick decision after we did oral argument,” King said. “I got to argue on August 30 on behalf of the Quileute and Quinault.”
She said she is glad that their voices were heard but felt it was unfortunate that they had to go to court to be able to do it.
The Makah Indian Tribe filed another appeal on the decision again; King said the Makah have moved for a rehearing.
She said she feels it is an honor to get to do this for different tribes.
“I tell my friends that I get to do this, to learn different cultures,” King said. “I get to figure out how to communicate to judges who might not have knowledge of tribes in general.”
She said she considers the Quileute an amazing client and amazing friends.